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821 Witzel Avenue
Oshkosh, WI 54902
(920) 233-3300
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HOW WOULD YOU DECIDE?
Answer
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The HOW WOULD YOU DECIDE? feature (which will be changed periodically) of my website is intended to inform and perhaps amuse viewers by providing a synopsis of how the legal system actually works in real life here in Wisconsin. Although there is no pleasure in discovering the woes that beset others who are caught up in the law, it is interesting to see how certain fact circumstances play themselves out when it comes time for a court to make a decision. All cases are summaries of real judicial rulings but some complexities of the appellate process have been omitted for easier reading. The full names of the participants are of course not used for obvious reasons and it should be clearly understood that although the decisions of our court system represent sound reasoning under the prevailing law based upon the situation from which the appeal itself arose -- it must not be assumed that an identical ruling would occur in a different factual context and therefore anyone having a legal problem should consult with an attorney -- not the legal trivia section of this website.
821 Witzel Avenue
Oshkosh, WI 54902

(920) 233-3300 phone
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​schultzlawoffice@hotmail.com
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The Case of the Altered AR-15
        
The Court of Appeals started out it’s analysis by pointing out that it is a long-established principle that a party to a lawsuit and every potential party has a duty to preserve evidence that is necessary to a claim that is likely to be brought before a Court. If a party or a potential party destroys, manipulates or loses evidence in a manner that amounts to spoilation, sanctions may be imposed by the presiding Court -- two of which are dismissal of a lawsuit or claim in it’s entirety or an instruction to the jury that intent could be inferred that the spoilation had occurred for the purpose of interfering with the litigation. The Court was careful to point out, however, that not all actions which result in loss, destruction or alteration of evidence constitutes spoilation and further that the evidence in question must also be analyzed with respect to it’s relationship to issues to be tried in the legal action; whether the spoilated evidence could be obtained from other sources; and whether the individual causing the loss, destruction or manipulation of the evidence knew or should’ve known at the time of his or her actions that a lawsuit involving that evidence was either ongoing or a distinct possibility of being filed. Furthermore, there are past cases that have been decided which stand for the proposition that a Court should rarely impose dismissal as a sanction for spoilation and should only do so when the actions of the individual involved are “egregious” in nature -- which means that the conduct demonstrated a conscious attempt to effect the outcome of the litigation or a flagrant, knowing disregard of the judicial process. In this case, the Court examined the actions of “A” and in particular focused upon a message that “B” had sent to him which read “If you get the gun back don’t use it or clean it or anything, just put it in your cabinet, cause if we go after [Gunshop] for it that will void everything.” The Court acknowledged that this put “A” on undeniable notice that a lawsuit was a distinct possibility and yet he took the AR-15 back to the Gunshop after it was returned to him by the police knowing that his injured brother’s attorney wanted to have the gun inspected. There was absolutely no proof that Gunshop knew that litigation might be in the offing when it followed the instructions of “A” to put a new retention plate into the weapon. But the Court apparently felt that what Gunshop was asking for (lawsuit dismissal) would be too unfair to the injured brother “B” who had absolutely nothing to do with “A”’s manipulation of the evidence. Interestingly, Gunshop had argued that justice would be served if “A” suffered the “very personal punishment” of having his brother’s claims against Gunshop dismissed because “A” would know that he had “both opened the door for [“B”’s] injury to occur and closed the door on [“B”’s] remedy”. The Court of Appeals however felt that this was just too harsh an outcome and it thus concluded that the Circuit Court’s sanction of issuing an instruction to the jury that it could draw an adverse inference against “A” regarding the spoilated evidence was the most reasonable sanction to be applied under the facts and circumstances of this unusual case and consequently Gunshop’s appeal was dismissed.
  
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This web site is for general information purposes only and nothing on it should be construed as constituting formal legal advice or the formation of an attorney/client relationship between Attorney Schultz and any viewer.​